Re: JOHN HUGH MICHAEL DORNAN; REGINALD CHESTER CROWE and EXTENDED HOURS PHARMACIES ASSOCIATION And: J.M. RIORDAN; M.A. JACKSON; J.R. RICHARDSON (CONSTITUTING THE PHARMACEUTICAL BENEFITS REMUNERATION TRIBUNAL) and THE COMMONWEALTH OF AUSTRALIA No. G849 of 1989 FED No. 383 Administrative Law 24 FCR 564
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Sweeney(1), Davies(1) and Burchett(1) JJ.
CATCHWORDS
Administrative Law - Judicial Review - Pharmaceutical Benefits Remuneration Tribunal - s.98BD National Health Act 1953 (Cth) - whether failure by Tribunal to state adequate reasons for its determinations - whether failure to state reasons amounts to error of law.
Counsel for the appellant: Mr J.J. Spigelman QC and
Mr A. Hughes
Solicitors for the appellant: Messrs Steve Masselos and Co.
Counsel for the respondent Mr J.I. Fajgenbaum QC and the Commonwealth of Australia: Mr R.M. Downing
Solicitor for the respondent Australian Government the Commonwealth of Australia: Solicitor
ORDER
The appeal be allowed.
The orders below be set aside and in lieu thereof, it be ordered that the decision of the Tribunal of 28 August 1989 be set aside ab initio.
The respondent pay the costs of the appeal and the costs below.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal brought by two pharmacists and the Extended Hours Pharmacies Association ("the Pharmacists") against an order made by a single judge of this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth)("the ADJR Act").
The application before the learned trial Judge sought orders of review setting aside a determination of the Pharmaceutical Benefits Remuneration Tribunal made 28 August 1989. A similar proceeding was brought by other applicants in The Pharmacy Guild of Australia and Ors v. The Commonwealth of Australia No. VG 273 of 1989. That application was heard and determined by Jenkinson J. who delivered judgment on 26 October 1989. Why the two proceedings, which both sought to challenge the determination of the Pharmaceutical Benefits Remuneration Tribunal under the ADJR Act on similar but not identical grounds, were not consolidated has not been explained to the Court.
Relevant provisions of the National Health Act 1953 (Cth) ("the Act") provide as follows:-
"98A. (1) For the purposes of this Part, there is hereby established a Tribunal to be known as the Pharmaceutical Benefits Remuneration Tribunal. ...
98B. (1) The function of the Tribunal is to determine the manner in which the Commonwealth price of all or any pharmaceutical benefits is to be ascertained for the purpose of payments to approved pharmacists in respect of the supply by them of pharmaceutical benefits.
(2) A manner determined under sub-section (1) shall -
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
The case of Dornan v Riordan involved the appellant, Dornan, challenging the decisions of the Pharmaceutical Benefits Remuneration Tribunal (the Tribunal). The dispute centred around the Tribunal's failure to provide adequate reasons for its remuneration determinations under section 98BD of the National Health Act 1953 (Cth). The matter was heard in the High Court of Australia.
The primary legal issue before the court was whether the Tribunal's failure to state adequate reasons for its determinations constituted an error of law. The appellant argued that the lack of proper reasoning rendered the Tribunal's decisions unlawful, as it failed to comply with the statutory requirement to provide reasons. The respondent contended that the absence of detailed reasons did not necessarily equate to an error of law and that the Tribunal's decisions were otherwise valid.
The High Court found in favour of the appellant, holding that the Tribunal's failure to state adequate reasons for its determinations amounted to an error of law. The court emphasised that the requirement to provide reasons was integral to the statutory framework and necessary for ensuring accountability and transparency. The court held that without adequate reasons, the Tribunal's decisions could not be considered lawful. Consequently, the appeal was allowed, and the Tribunal's decision of 28 August 1989 was set aside from its inception. Additionally, the respondent was ordered to pay the costs of the appeal and the proceedings below.
Orders
Orders of the court
The appeal be allowed.
The orders below be set aside and in lieu thereof, it be ordered that the decision of the Tribunal of 28 August 1989 be set aside ab initio.
The respondent pay the costs of the appeal and the costs below.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.